The Occupational Safety and Health Administration (OSHA) released its emergency temporary standard (ETS) that requires businesses with 100 or more employees to require that their employees get vaccinated against COVID-19 or wear a mask and test for COVID-19 on at least a weekly basis. Section 2 of the OSHA ETS FAQs defines how employees should be counted.

Important dates and details were also released by the White House:

By December 5, 2021

Employers must determine the vaccination status of each employee, obtain proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. Employees self-reporting that they are vaccinated is not enough. Employers must have proof of vaccination status.

All unvaccinated workers must begin wearing masks indoors and while in a vehicle with another person (unless wearing a face covering is a safety hazard).

Employers must provide up to 4 hours of additional paid-time for employees to get vaccinated. Employers must also provide reasonable (defined by OSHA as two days) paid sick time to recover from vaccine side effects, which can be from existing PTO of sick leave balances.

By January 4, 2022

Unvaccinated employees must begin providing a negative COVID-19 tests on a weekly basis.

Employees who are partially vaccinated are also required to be tested weekly until they are fully vaccinated (2 weeks after Johnson & Johnson vaccine and 2 weeks after second doses of Pfizer or Moderna vaccine).

The deadline for federal contractors to comply with vaccination and testing requirements has been pushed back to January 4th as well

Required Employee Communications
Employers must provide employees with the following communication regarding COVID-19 vaccination, testing, and mask policies. Communications must be provided in a manner employees understand, including multiple languages if necessary. OSHA has some sample policies available in the Implementation section of the ETS website. This policies include:

Information about the requirements of the ETS and your company policies and procedures established to implement COVID-19 vaccination, testing, and mask policies.

Information about paid time off for vaccinations and any side effects experienced following vaccinations.

The procedures employees need to follow if they have a positive COVID-19 test result.

The CDC document Key Things to Know About COVID-19 Vaccines.

Information about protections against retaliation and discrimination. OSHA has created a helpful resource you can use for this (also in Spanish).

Information about laws that provide for criminal penalties for knowingly supplying false statements or documentation. OSHA has created a helpful resource you can use for this (also in Spanish).

Important Details
Employers are not required to pay for or provide COVID-19 tests for unvaccinated employees unless they are otherwise required to by state or local laws or in labor union contracts. Nothing prohibits employers from voluntarily assuming the costs associated with testing.

Employers can choose to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Those employers would still need to have plans for testing and mask requirements for employees who qualify for a vaccine exemption. If you have questions about exemptions, please reach out to our HR team for assistance.

Employees who work from home and do not report to a workplace where other individuals such as coworkers or customers are present are not required to comply with vaccine or testing requirements, unless they visit the office. In that case, unvaccinated employees would be required to submit a negative COVID-19 test within 7 days prior to returning to the workplace.

Recommended Next Steps 
Legal challenges to the mandate are expected, but we recommend that employers with 100 or more employees take the following steps to be prepared to comply if necessary. The ETS does state that these rules supersede any state or local rules prohibiting vaccine and testing mandates.

Now would be a good time to begin collecting vaccination information from employees. This will allow you to enforce masking requirements beginning December 5th.

Decide whether your company will allow weekly COVID-19 testing for unvaccinated employees or mandate vaccines for all employees.

Begin developing your company’s policies and procedures for collecting vaccine and testing information from employees.

Prepare communications to be distributed to employees.

Additional Resources

There are a number of additional resources that you may find helpful:

OSHA ETS Website
OSHA ETS Frequently Asked Questions
OSHA Mandatory Vaccination Sample Policy
OSHA Face Covering and Testing Sample Policy

If you have any questions about the ETS for COVID-19 vaccination and testing, please reach out to us at